Director of Public Prosecutions v Diab (Sentence)
[2022] VCC 788
•2 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00044
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FADI DIAB |
---
JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: DATE OF TRIAL: | Melbourne 9, 11, 14, 15, 17, 18, 21, 22 & 24 February, 2022 | |
DATE OF HEARING: | 12 April, 27 May & 2 June 2022 | |
DATE OF SENTENCE: | 2 June 2022 | |
CASE MAY BE CITED AS: | DPP v Diab (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 788 | |
REASONS FOR SENTENCE
---
Subject:Criminal law - Sentence
Catchwords: Two charges of discharging a firearm reckless as to the safety of police – verdict following trial – single shot fired reckless as to the safety of two police officers – accused injured when police fired in response – plea to charges of handling a stolen handgun and possession of the handgun without a licence – plea to summary offence of failing to store cartridge ammunition – very serious violent offending – aggravating feature that police were fired at while performing duties on behalf of the community - limited but relevant prior criminal history – significant escalation in offending behaviour – difficult childhood marked by parental abuse - extra-curial punishment due to bullet injury sustained by accused requiring hospitalisation – PTSD as a consequence – delay – application of limb 5 of Verdins - burden of imprisonment – general deterrence, just punishment and denunciation paramount sentencing considerations – reasonably good prospects of rehabilitation –- specific deterrence of less significance given prospects and effect of extra-curial punishment – modest cumulation ordered in respect of the two offences on the trial indictment given the offences arose from a single act but risked the safety of two victims – totality – calculation of pre-sentence detention – 12 days in hospital, under police guard, taken into account as a matter of justice
Legislation Cited: Crimes Act 1958; Firearms Act 1996; Sentencing Act 1991
Cases Cited:Cheung v The Queen (2001) 209 CLR 1; The Queen v Liszczak & Phillips [2017] VSC 103; Worboyes v R [2021] VSCA 169; The Queen v Barci (1994) 76 A Crim R 103; R v Verdins [2007] VSCA 102; DPP v O’Neill [2015] VSCA 325; Liszczak & Phillips v The Queen [2017] VSCA 113; DPP v Le [2019] VSCA 219; DPP v Noori [2019] VSC 172; DPP v Singh [2021] VSC 182; Akoka v The Queen [2017] VSCA 214; R v Renzella [1997] 2 VR 88
Sentence: Seven years, five months and 18 days’ imprisonment with a non-parole period of five years
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Karamicov (for trial) Ms J Warren (for plea) | Office of Public Prosecutions (Victoria) |
| For the Accused | Mr D Dann QC | Marcevski Lawyers |
HER HONOUR:
1Fadi Diab, on 24 February 2022, a jury of 12 found you guilty of two charges of discharging a firearm reckless as to the safety of a police officer on Indictment K12499808.2A (‘the trial indictment’) contrary to s 31C(2) of the Crimes Act 1958. The maximum penalty for this offence is 15 years’ imprisonment.
2Prior to trial, you also pleaded guilty to two charges on Indictment K12499808.2B (‘the plea indictment’) being one charge of possessing a general category handgun without a licence contrary to s7(1) of the Firearms Act 1996, the maximum penalty for which is four years’ imprisonment or 240 penalty units and a charge of handling stolen goods, namely a .38 Smith & Wesson revolver, contrary to s 88(2) of the Crimes Act 1958, the maximum penalty for which is 15 years’ imprisonment.
3You have also pleaded guilty to a summary offence of failing to store cartridge ammunition contrary to s121(1A) of the Firearms Act 1996, the maximum penalty for which is 12 months’ imprisonment or 60 penalty units.[1]
[1]Summary Charge 11
4These charges arose from events that occurred on 12 September 2019 when, shortly after 4.52 am, you shot at two members of the Australian Federal Police (‘AFP’), A/Sgt Kyle Stacey and Senior Constable Tyson Gee after they encountered you and another male standing behind a stolen car in a gravel area situated off Providence Road, Greenvale.
5At trial, you did not dispute that you discharged the firearm. The main issue in dispute at trial was whether you did so knowing or reckless as to whether the two people you shot at were police officers. A secondary issue was whether you were reckless as to the safety of SC Gee, given his location at the time you discharged the firearm. This issue was not disputed in respect of A/Sgt Stacey.
6By its verdict, the jury found that you either knew, or were reckless as to whether, A/Sgt Stacey and SC Gee were police officers when you discharged the firearm and that you were reckless as to the safety of both officers when you did so.
7It is now my role to sentence you for the offending. In doing so, I must sentence you on a basis consistent with the jury verdict on your trial.[2] In assessing your criminal culpability for this conduct, I must be satisfied of the facts relevant to these issues to the criminal standard.[3]
[2]Cheung v The Queen (2001) 209 CLR 1, 9 [6]
[3]Cheung, at [7]
Summary of offending
8I turn now to summarise the offending for which you are to be sentenced.
9On 11 September 2019, A/Sgt Stacey and SC Gee commenced their shift at Melbourne Airport at 9.00pm. Both officers were wearing AFP uniforms, including a ballistic vest displaying police insignia on the front and back.
10At 4.40am on 12 September 2019, the officers commenced patrolling in the vicinity of Providence and Section Roads, Greenvale in an unmarked AFP vehicle, a white Ford Territory. During that patrol, the officers observed a black Volkswagen Jetta sedan (‘the VW’) parked on a gravel service road that runs parallel to the southern side of Providence Road, near the intersection of Section Road. The officers formed the opinion that registration plates on the vehicle were cloned. Preliminary inquiries further indicated that the registration details did not match the vehicle’s make, model and colour.
11At 4.42am, A/Sgt Stacey contacted Broadmeadows Police to obtain any information regarding the car, and was advised by police that the VW was a stolen vehicle. During that call, A/Sgt Stacey and SC Gee received an urgent request from Victoria Police to attend at nearby Crestwood Road, Greenvale as a police divisional van had been rammed.
12Having attended that area and spoken with Victoria Police, A/Sgt Stacey and SC Gee returned to the VW near Providence Road. On their approach, the officers saw tail lights in the distance, which they followed. When they arrived at the gravel service road off Providence Road, they saw that the VW was still parked there. They also observed a second vehicle parked to the side of this vehicle with its tail lights illuminated.
13You and another male, Joshua Eddy were standing at the rear of the VW. The other vehicle was parked to the left of the VW and the boot of the VW was open. You were on the passenger side and Mr Eddy was standing on the driver’s side at the rear of the VW facing the open boot.
14A/Sgt Stacey was driving the unmarked white Ford Territory. He parked the vehicle approximately 8.8 meters from the VW.[4] A/Sgt Stacey’s evidence is that he got out of the vehicle and, at the point he drew his firearm, he yelled, “police, don’t move”. A/Sgt Stacey gave evidence that he believed you and the other male had been involved in the earlier incident involving the ramming of the police divisional van. Once the police vehicle was parked, SC Gee said that he immediately exited the passenger side of the vehicle, and yelled, “police, don’t move”. SC Gee said he observed Mr Eddy doing something with his hands in the boot, and again yelled out, “show me your hands, show me your fuckin’ hands”, and then drew his service firearm.
[4]Trial exhibit D – sketch drawn by LSC Griffiths.
15After A/Sgt Stacey exited the vehicle, the second vehicle at the scene drove off in a westerly direction along Providence Road.
16A/Sgt Stacey and SC Gee walked towards you and Mr Eddy, closing the distance between him and you. SC Gee had moved “a few paces” towards the VW from the front passenger side of the vehicle. You were standing on the passenger side towards the rear of the VW. You then removed the handgun from the right pocket of your pants and fired a shot in the direction of A/Sgt Stacey. At that point, A/Sgt Stacey was standing near the front of the police vehicle, still on the driver’s side. The door of the police vehicle was open and the bullet fired by you lodged in the driver’s side door, but did not strike either officer. In discharging the firearm in these circumstances, you were reckless as to the safety of both A/Sgt Stacey and SC Gee given their proximity. This is the conduct that is the subject of the charges of discharging a firearm reckless as to the safety of a police officer, being charges 1 and 2 on the trial indictment.
17The firearm used by you was a .38 calibre Smith & Wesson revolver which had been stolen from a residential property in Frankston North on 16 May 2018. Your conduct in retaining the firearm knowing or believing it was stolen is the subject of the charge of handling stolen goods, which is charge 2 on the plea indictment.
18After you discharged the firearm, A/Sgt Stacey returned fire, discharging two shots in rapid succession, hitting you in the neck and right shoulder. You immediately fell to the ground. A/Sgt Stacey approached you and directed you to tell him the whereabouts of the firearm. Moaning, you moved your legs to reveal the firearm under your lower leg. A/Sgt Stacey asked why you shot at him, and you replied, ‘sorry’. You were not licenced to possess the handgun. Your conduct in possessing the Smith & Wesson firearm is the subject of charge 1 on the plea indictment – possessing a general category handgun without a licence.
19The .38 Smith & Wesson used by you was seized by police and examined. It was found to contain six rounds of ammunition, including a fired Federal .38 special cartridge and two fired Winchester .38 SPL cartridges. The firearm also contained three additional live .38 calibre cartridge cases. It was a fully operational handgun with a sawn-off barrel measuring 226 millimetres.
20At 5.18am, you were conveyed by ambulance to the Royal Melbourne Hospital for treatment. You underwent surgery that day and a bullet fired by A/Sgt Stacey was removed from your neck.
21At 4.24pm on 12 September 2019, police attended your home address in Tullamarine and executed a search warrant. In a bedroom of the house they located a safe containing a large amount of ammunition. The safe was found open and unlocked. The ammunition located in the safe included 22 loose shotgun cartridges, five 223 brass cartridge cases, 2 rounds of ammunition of unknown calibre, one plastic magazine containing three rounds of ammunition and a metal box containing 900 rounds of ammunition. These items are the subject of summary charge 11 – failing to store cartridge ammunition for a Category A or B longarm in a secure manner.
22Twelve days following your admission, you were discharged from hospital on 24 September, 2019. On that date, the informant attended at the Royal Melbourne Hospital and arrested you. You were then transported by police to the Melbourne West Police complex. In transit, you spoke with police and told them that you were responsible for the shooting, but said you were not aware they were police at the time, explaining that the police vehicle’s lights had not been activated and you could not see the officers’ fluoro vests.
23During that conversation with police, you said that you had believed other gang members were “coming to get me, kill me” and that, in response, you had fired at the engine block of the vehicle, intending to flee.
24You were formally interviewed by police later that day. You told police that the incident was a “misunderstanding”. You said you had not realised it was a police vehicle when it stopped behind you. You told police that when you first saw the vehicle arrive at the scene, you believed you were going to be killed or kidnapped. You said that when the vehicle arrived you observed headlights and heard voices, including a voice say, ‘what are youse doing?’ and scared, you fired the gun.
25In relation to the .38 calibre Smith & Wesson you told police that the revolver had belonged to your late grandfather and had been given to you as a gift by your grandmother. This explanation was false.
Procedural history
26Following your discharge from hospital, you were charged with two counts of attempted murder on 24 September 2019. You have been remanded in custody since this time. Following a committal hearing in December 2020, you were discharged on the charge of attempted murder in respect of SC Gee and on 12 January 2021, the remaining charge of attempted murder was withdrawn. The trial proceeded only in relation to the two disputed charges of discharging a firearm reckless as to the safety of a police officer commencing on 9 February 2022. The jury returned its verdict on 24 February 2022. I return to the relevance of this delay later in my reasons for sentence.
Offence gravity and criminal culpability
27I turn now to discuss the nature of your offending and the extent of your culpability for this offending.
28Plainly, offences involving shooting at police are inherently serious. The offence created by s31C of the Crimes Act 1958 of discharging a firearm reckless as to the safety of a police officer carries a maximum penalty of 15 years’ imprisonment. This is a clear indication of the seriousness with which this offence is viewed by Parliament.
29It is an aggravating feature of your offending that the police officers were shot at in the course of undertaking their duties that night. The case of R v Liszczak & Phillips,[5] involved co-offenders recklessly discharging a firearm at a police vehicle at close range. Two police officers were in the vehicle, and one was injured when struck by a bullet. In sentencing the co-accused for recklessly causing injury to one police officer and reckless conduct endangering serious injury to the other police officer, Justice Croucher observed:[6]
In my view, a very significant aggravating feature of both offences is that police were shot at when they were in the course of performing their duty. While I accept that the decision to fire must have been made at the spur of the moment…[the accused] chose to fire the gun directly at police who were doing no more than performing their sworn duty to protect the community.
Police have a hard enough job as it is. To be subject to such frightening violence is totally unacceptable. The courts must protect police – and the wider community – from such harmful and dangerous behaviour by denouncing it in the strongest terms and passing sentences that punish the perpetrators justly and stand as a deterrent both to them and any others who might be minded to engage in such behaviour.
[5] Liszczak & Phillips v The Queen [2017] VSC 103
[6]Liszczak, at [70]-[71]
30These sentencing remarks have clear application to your case.
31Although no victim impact statements were relied upon, there is no doubt that this must have been a terrifying ordeal for A/Sgt Stacey and SC Gee.
32In determining the degree of criminality associated with your conduct, it is appropriate that I make findings regarding the circumstances in which you discharged the firearm.
33In evidence led at the trial, A/Sgt Stacey gave evidence of one, possibly two shots being fired by you. SC Gee’s evidence was that he heard two to three shots in general, including the shots fired by A/Sgt Stacey. A/Sgt Stacey fired two shots that struck you. LSC Griffiths gave evidence of three indented cartridges being found in the .38 Smith & Wesson fired by you, but could not say when they had been discharged. Only one bullet from your firearm was located. In the circumstances, I am not satisfied beyond reasonable doubt that you fired more than one shot when you discharged the firearm.
34You acted recklessly when you did so. You foresaw that an appreciable risk to the safety of the officers was a probable consequence of your conduct, but went ahead regardless.
35On the issue of whether you knew or where reckless as to whether the men were police officers, the prosecution submits that the jury must have rejected your account that the officers did not announce their presence by issuing the ‘challenge’ when they exited the vehicle, or at least rejected the suggestion that you did not hear the officers when they announced their presence.
36On your behalf, Mr Dann submitted that I could not be satisfied that you had a state of actual knowledge that the men were police when you shot at them. Mr Dann submitted the account you gave of firing the gun in fear is relevant to your state of mind. Mr Dann referred to the explanation you provided to police of fearing the presence of other gang members. He submits this fear was not unrealistic given that you understood Mr Eddy to be the Sergeant-in-Arms of the Mongols outlaw motorcycle gang. Mr Dann argued there was other evidence the jury may have considered in reaching its verdict, such as the fluoro and insignia on the front of the vests worn by the officers. Mr Dann submits that if I cannot be satisfied to the requisite standard that you knew the men were police, then I can only find that you were reckless as to whether they were police officers at the time you discharged your firearm.
37I have considered all of the evidence led at trial on this issue. It is clear that the entire incident took place in a matter of seconds, not minutes.[7] The police arrived in an unmarked police vehicle without police lights or sirens activated. The weight of the evidence is that the vehicle’s lights were on high-beam and facing in the direction of the VW. You were facing in the direction of those headlights at the time you discharged the firearm. Both A/Sgt Stacey and SC Gee gave clear evidence of announcing their presence by the use of the standard ‘challenge’, “police, don’t move”. I am satisfied this was said by both officers.
[7]T80, evidence of A/Sgt Stacey
38However, contrary to the prosecution submissions, I cannot be satisfied beyond reasonable doubt that you heard the police announce their presence. A/Sgt Stacey’s evidence is that he heard SC Gee say something at this point, but did not hear what he said. A/Sgt Stacey agreed SC Gee may have announced his presence and then repeated, “show me your hands”, but said that “in all that was going on”, he did not hear it. Similarly, SC Gee did not hear A/Sgt Stacey yell out, “police, don’t move”. SC Gee said the first he heard A/Sgt Stacey say something was when he heard shots fired, not prior. At that point, the two officers were standing a few metres from one another whilst, on the evidence of LSC Griffiths, you were standing approximately 7-8 metres from the officers. SC Gee’s evidence is that the male he was observing, Mr Eddy, did not respond to the words he called out either.[8]
[8]T 179, Line 26
39I accept the prosecution submission that the emotionally-charged circumstances may explain why the officers did not hear each other, however, this is why it is plausible that you did not hear the police identify themselves either. In all the circumstances, I cannot be satisfied to the requisite standard that you had a state of actual knowledge that the men where police officers when you fired the shot. Consistent with the jury verdict, I find that you were reckless as to whether both men were police officers, that is, that you believed it was probable they were police officers when you discharged the firearm.
40I accept that you shot at police in the spur of the moment. Your actions were not planned or premeditated. Nonetheless, you encountered police at the scene armed with an operational handgun and by your actions, demonstrated a preparedness to use it. The risk to safety inherent in discharging a firearm within such close proximity to others is self-evident. It was very fortunate that neither officer was struck or seriously injured (or worse) by your actions. This offending is a significant escalation into extremely serious criminal conduct by you. It is relevant to your moral culpability that your state of mind was such that, even in those moments, you believed it was probable that you were shooting at police officers. Your moral culpability for your reckless conduct in such circumstances is significant.
Personal circumstances
41I turn now to your personal circumstances. I have drawn much of your personal history from the psychological reports relied upon on your plea. Mr Ian Mackinnon, consultant psychologist, had completed a report prior to your trial, dated 12 April 2020.[9] You were also assessed by clinical neuropsychologist, Mr Mathew Staios on 1 April 2022 and his report dated 5 April 2022 was tendered on your plea.[10] An addendum report prepared by Mr Staios dated 24 May 2022 was also tendered at the further plea hearing.[11]
[9]Exhibit E
[10]Exhibit D – report of Mr Staios dated 5 April 2022
[11]Exhibit I – Addendum report of Mr Staios dated 24 May 2022
42You were born in Melbourne in November 1990 and are now 31 years old.
43You describe a difficult childhood. You father was born in Lebanon and came to Australia in the 1980s. Your mother was born in Australia. You are the eldest of three siblings, with a younger brother and sister. The family lived together in Airport West as you were growing up. Although your relationship with your father was positive, you state that you were subject to repeated abuse by your mother throughout your childhood into your late adolescence. You recounted an incident to Mr Staios where you were once disciplined by your mother holding your hand over the hotplate of the stove, resulting in burns to your hand. You feared your mother and would experience anxiety returning home after a school day. You ran away from home on three occasions in your mid-teens and experienced periods of homelessness, living on the streets, each time.
44In Mr Staios’ opinion, your early childhood trauma impacted on your mental health, stating:
His history of childhood abuse and a lack of formal psychological support to address these issues throughout the course of his lifespan has resulted in the formation of trauma-based psychopathology, a limited capacity for emotional regulation and practical problem-solving, and substance use as a means of coping and escapism.[12]
[12]Ibid, at [7.1]
45Your schooling was interrupted by multiple suspensions and expulsions. You attribute your poor school record to the instability of your home environment leading you to engage in disruptive behaviour at school, including fighting. You completed primary school at Saint Christopher’s in Airport West and undertook years 7-8 at St Bernard’s College in Essendon, before being expelled. You repeated part of year 8 at St Joseph’s College in Pascoe Vale but were expelled again in the initial stages of year 8. You struggled to settle and concentrate academically. Although Mr Staios did not conduct a formal assessment, he states your general intellect is likely to fall within the borderline to low average range.[13]
[13]Exhibit D - Report of Mr Staios dated 5 April 2022 at [5.1]
46You commenced a mechanics course at TAFE but ceased after six months and never completed the course. Under the influence of older peers, you report selling illicit drugs until you moved to live in Lebanon for a period of two years when you were 18.
47At the age of 14, you began working in your uncle’s pizza shop in South Melbourne. You have spent much of your adult life working in this industry, including a period of 18 months working in your father’s pizza shop in Hampton and as the manager at Melrose Pizza shop in Tullamarine between 2012-2019. In that role, you were responsible for ordering stock, rostering and balancing the till at the end of shifts. In 2019, you and a business partner took out a loan to lease and renovate premises in Essendon with the intention of opening a Godfather’s pizza restaurant there. This business proposal ended upon your arrest and remand.
48It was while you were living in Lebanon that you met your wife, Eliane. You married in 2010 and she came to live with you in Australia on a spousal visa. Together you have four children, three sons and a daughter. Three of the children are of primary school age; the youngest is 3 years old. Your relationship with your wife is a stable and positive one although as a family, you have struggled financially. Your wife speaks limited English and does not work. You are the sole provider for the six of you. Since your arrest, your wife and children have had to move in with your parents and the house rented to meet the mortgage repayments. Your wife remains supportive of you.
49During your assessment with Mr Mackinnon, you describe regular cannabis use that began three years prior to this offending, to cope with feelings of stress. You were using cannabis daily throughout this period and in the lead up to this offending. You used other drugs recreationally. As to the circumstances leading to these events, Mr Dann explained that your drug use and deteriorating financial situation led to your association with others involved in criminal activity.
50Mr Mackinnon assessed you with a Post-Traumatic Stress Disorder (‘PTSD’) as a sequalae to being shot on 12 September 2019. Mr Staios similarly assessed you with symptoms of PTSD, including flashbacks, nightmares, hypervigilant behaviours and anxiety. In his initial report, Mr Staios noted that you were placed on mood stabilisers and anti-depressants but ceased taking these in custody due to adverse effects. Mr Staois opines that your PTSD worsened at the time you entered custody and at the time of his first report, stated your condition was yet to be effectively treated.[14] Mr Staios recommended you receive ongoing psychological treatment, specifically directed to treating your PTSD and substance abuse issues into the future.
[14]Ibid, at [7.3]
51In his addendum report dated 24 May 2022, Mr Staios reports that you have recently re-engaged with medical and mental health services and are now under the care of a mental health nurse. He reports that you have now engaged in counselling on 17, 24, 27 April and 3 May 2022 to assist in managing your PTSD symptoms. You report being open to trial other medications.
52I have received a number of character references on the plea.[15] These references come from people who have known you for many years in various employment and personal capacities. In general, they speak of you as someone who is dedicated to his family and his work. Your parish priest has known you for more than ten years and highlighted your participation in Church and community events. Those who have worked with you describe you as committed, punctual, loyal and respectful to staff and customers. Each referee states that you have expressed regret for you actions, including telling your former employer at Melrose Pizza, “I have nobody to blame but myself, I put myself in that situation”. Many describe this offending as out of character when viewed in the context of the person they know. I have taken these character references into account in sentencing you. I return to the question of remorse later in my reasons.
[15]These references formed part of Exhibit H
53You have a limited, but relevant prior criminal history. In May 2009 you were placed on an adjourned undertaking, without conviction, for possessing a prohibited weapon without exemption. Mr Dann explained this court appearance related to you being found with a knuckle duster when you were 18 years old. In August 2011, you were convicted and fined $6000 for importing tier 2 goods, namely a knuckle duster and a laser device. Your only other conviction relates to dishonesty offences, including burglary and theft, for which you were sentenced to a community correction order in December 2009 which you completed. You had not offended between 2011 and the date of this offence in September, 2019. You have no prior history for violent offending and you have never served a period of imprisonment previously.
Matters in mitigation
54Having discussed the gravity of your offending, I now turn to a number of matters that were raised on your behalf in mitigation of sentence.
55First and foremost is the fact you pleaded guilty to the charges of possession of a general category handgun without a licence and handling the stolen handgun, being charges 1 and 2 on the plea indictment. In doing so you acknowledged responsibility for this offending and facilitated the course of justice. There was also utility in this plea in saving court time, particularly at this time,[16] and you are entitled to the benefit of your plea in respect of those offences.
[16]See Worboyes v R [2021] VSCA 169
56Moreover, the issue at trial was a confined one. You never disputed that you fired the handgun. Indeed you indicated an intention to plead guilty at trial to an alternative offence of discharging a firearm at a vehicle. You indicated your remorse for doing so, both at the time of the incident and subsequently, when spoken to by police on 24 September 2019. That you regret your action is also attested to in your character references.
57You did not plead guilty to the offences in respect of which you were found guilty by the jury. You still maintain your innocence in relation to these offences. This, of course, is not an aggravating feature and you are not to be punished for running a trial. However, there was no acceptance by you of the fact you were reckless as to whether those you shot at were police officers. An offender who pleads guilty to an offence is entitled to a significant sentencing discount. Here, you are not entitled to such a sentencing discount on these two offences. However, the question of remorse is not as straight-forward. I accept that by acknowledging responsibility for discharging the firearm you indicated remorse for that component of your offending conducted. I have taken that factor into account in sentencing you.
58Secondly, it is relevant to my sentence to acknowledge that you were seriously injured during the course of these events. The police are not to be criticised for firing back at you. However, the law recognises that a serious injury sustained by an offender, even when sustained whilst engaging criminal conduct, is a mitigating factor.[17] Following your admission to the Royal Melbourne Hospital, you underwent surgery for the penetrative injury to your neck and the bullet fragments were removed. The discharge summary provided by the Royal Melbourne Hospital confirms you suffered the penetrative neck injury, extensive subacute emphysema of the neck and chest, a right vertebral artery dissection, a vertebral body impact fracture, laceration of the posterior pharyngeal wall and a right shoulder entry/track wound.[18]
[17]The Queen v Barci (1994) 76 A Crim R 103 (‘Barci’)
[18]RMH discharge summary that forms part of Exhibit C
59You underwent a laryngoscope and a salivary bypass tube was inserted. You were in the intensive care unit for eight days and in hospital for a total of 12 days. You required a hard collar for the vertebral impact fracture for a period of six weeks, and ongoing reviews by the orthopaedic and vascular clinics.[19] You have been diagnosed with PTSD arising from these circumstances. Your injury is itself a form of extra-curial punishment and undoubtedly made your initial period of time in custody more difficult.[20] I have taken this into account in mitigation of your sentence. The relevance to sentence of an injury suffered in these circumstances was articulated by the Court of Criminal Appeal in the case of Barci in the following way:[21]
The fact is that these very serious injuries resulted from the commission of the crime itself. For the rest of his life these injuries will serve as a savage reminder to [Barci] of his criminality, and as such, they must fairly be regarded as constituting some punishment for that criminality.
[19]Ibid
[20]Report of Mr Mackinnon dated 12 April 2020, at page 4.
[21]Barci, at [110-111]
60Thirdly, there has been considerable delay in the finalisation of this matter through no fault of yours. This delay was occasioned by two factors, first due to the delay in resolving the charges of attempted murder, and secondly due to the delays occasioned by the impact of Covid-19 on committal proceedings. I accept that having these very serious charges hanging over your head for a period of two-and-a-half years, not knowing the outcome, has been a source of anxiety for you and moderates the sentence I will impose.
61I also have regard to the fact you utilised your time in custody to undertake a number of courses and programs until these ceased due to the pandemic. These include obtaining numerous vocational training certificates through Box Hill Institute, including certificate qualifications in kitchen operations, first aid and engineering. You have also engaged in drug and alcohol programs and through Forensicare, participated in eight individual psychological sessions in 2020.[22]
[22]Certificates comprising Exhibit G
62I turn now to your prospects of rehabilitation. In your favour, you have family support available to you and a very good employment history. Your prior criminal history is limited, and until this very serious matter, you had no history of violent offending. This was clearly a significant escalation in offending behaviour. It is, of course, of concern that you were associating that night with another individual involved in criminal activity.[23] Against this, your character references speak of you as a committed family man and someone who has demonstrated a strong work ethic. You had not engaged in any offending, until September 2019, for an extended period. Since your remand, you have demonstrated a willingness to engage in vocational programs to advance your rehabilitation, including drug and alcohol treatment[24] and have recently re-engaged with psychological treatment for your PTSD. Notwithstanding the seriousness of this offending, I assess that you have reasonably good prospects of rehabilitation into the future. Much of course will depend on your effective engagement in ongoing treatment, particularly for your PTSD and drug abuse issues.
[23]Counsel confirmed that Mr Eddy was subsequently sentenced for drug-related offending.
[24]I also note that six clear urine screens were provided taken between the period 2 January and 8 December 2020 – Exhibit F, however no further urine screens were provided subsequent to this date..
63There are a number of factors that mean your time in custody will be especially hard.
64Firstly, much of your time in custody has run in parallel to the restrictions imposed by prison authorities to respond to the COVID-19 pandemic. Face-to-face visits were suspended and lockdowns continue in order to respond to outbreaks of the virus. I accept that these restrictions make conditions in custody more onerous and isolating, particularly for a person experiencing custody for the first time.
65Secondly, you are acutely conscious that this is a particularly difficult time, both emotionally and financially, for your wife and children. Although it is not submitted your family’s hardship is exceptional, I am satisfied your knowledge of their difficulties adds to the burden of your time in custody. The family situation is explained in your wife’s letter to the Court dated 23 May 2022, in which she states:[25]
Since the known incident on 12 September 2019, and Fadi’s long term absence, I have fallen into financial, emotional and psychological hardship, due to dealing with family duties, mortgage, bills and daily obligation as a single-parent. As a result I have been forced to move out of our family home and live with my parents-in-law to try and cope with these huge pressures.
My children are also suffering emotionally since the incident, as they are not coping and understand what has happened, and are always sad, anxious and [in a] confused state of mind. Furthermore, the children have not seen their father physically face-to-face for over one year due to COVID restrictions, and have only been able to interact via Skype, which has added this extra and massive stress to my children’s state of mind.
[25]Exhibit J – letter of Elaine Diab dated 23 May 2022
66Thirdly, Mr Dann submits and the prosecution accepts, that limb 5 of the authority in Verdins applies, and that you are entitled to a moderate degree in mitigation of sentence as your diagnosed PTSD is likely to make your sentence more onerous than that experienced by a person without your mental health condition.[26] I accept the opinion expressed by Mr Staios that your diagnosed PTSD is likely to make your time in custody more onerous. However, now you have re-engaged in therapy and are open to trial other medications to assist with your condition, Mr Staios concludes that your time in custody is likely to be significantly less onerous than he initially considered.[27] Given that qualification, I consider you are entitled to some, but not significant, moderation in sentence due to your PTSD.
[26]Verdins [2007] VSCA 62
[27]Exhibit 1 – Addendum report of Mr Staios dated 24 May 2022 at [1.7]
67Mr Dann further submitted that limb 6 of Verdins applies, arguing that the evidence establishes a serious risk of imprisonment having a significant adverse effect on your mental health. In making this submission, Mr Dann highlighted that Mr Staois assessed you with marked elevations on the relevant scales (‘MCMI-III’) for anxiety, depression and PTSD.[28] He submits that, although you are open to other medication options, as yet there are none. Further, that it is not yet apparent how you will progress with mental health treatment, particularly given that such treatment may be undermined by ongoing lockdowns and the compounding effect of the various stressors you are experiencing whilst in custody. Mr Dann submits these matters were raised in Mr Mackinnon’s report in April 2020, where he states these matters “all threaten to raise the levels of his PTSD, anxiety and depression to a more clinically significant level, making imprisonment more arduous and traumatic for him that it already has been”.[29]
[28]Exhibit J – ibid at [1.2]
[29]Exhibit E – Report of Mr Ian Mackinnon dated 12 April 2020, at page [7]
68The authorities have repeatedly emphasised the need for the sentencing judge to assess the nature, extent and effect of the mental impairment experienced by the accused, including at the time of sentence, and to apply rigour to the assessment of the evidence when considering the application of Verdins’ principles.[30] Here, I accept you suffer from PTSD and, without treatment are at risk of deterioration in this condition. In Mr Mackinnon’s report of April 2020, he noted that you had yet to be able to access mental health therapy in custody at that time. However, the most recent report of Mr Staios, to which I attach weight given its currency, concludes that your time in custody is “likely to be significantly less onerous” given you have now re-engaged with treatment. Given the updated prognosis as expressed by Mr Staios, I am unable to conclude that there is now a serious risk that imprisonment will have a “significant adverse effect” on your mental health. This conclusion should not be taken to negate the finding I have made regarding the impact of your diagnosed PTSD on the burden of your imprisonment, which I do accept.
[30]See, for instance, DPP v O’Neill [2015] VSCA 325 at [77]-[78].
Other sentencing considerations
69I now wish to address other sentencing considerations.
70I have had regard to the purposes of imposing sentence as set out in s 5 of the Sentencing Act 1991. In a case such as this, the paramount sentencing considerations are those of general deterrence, just punishment and denunciation. In sentencing you, I must deter others from resorting to the use of firearms in a manner that recklessly risks the safety of police officers as they perform their duty on behalf of the community. I must unequivocally denounce such serious criminal conduct.
71Whilst your prior criminal history is not significant, it is relevant. More importantly, this was extremely serious offending involving the discharge of an firearm at police officers. The firearm possessed by you, without licence, was fully operational and you were willing to use it. I consider the sentence I impose also needs to deter you specifically from further offending, although my favourable assessment of your prospects of rehabilitation and the impact of your extra-curial punishment means this factor carries less weight in my sentence than that of general deterrence.
72The charges of discharging a firearm reckless as to the safety of a police officer are category 2 offences for the purposes of the Sentencing Act 1991. Pursuant to s 5(2H) of that Act, the sentences imposed on charges 1 and 2 on the trial indictment must be terms of imprisonment, unless any of the matters set out in paragraphs (a) to (e) apply. Mr Dann, in his submissions on your behalf, accepts that a term of imprisonment is the only sentencing option available in the circumstances of this case.
73The other legislative provision to which I have had regard is s 16(3E) of the Sentencing Act 1991 which relevantly provides that:
16 Sentences – whether concurrent or cumulative
(3E) Every term of imprisonment imposed on a person for—
(a) an offence against section 31C of the Crimes Act 1958in circumstances where the offender’s conduct created a risk to the physical safety of the victim or to any member of the public
…
must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
74Notwithstanding this provision, as Mr Dann emphasised in his submissions, it is appropriate that my sentence reflects that charges 1 and 2 on the trial indictment arise out of the single act of discharging the firearm. Mr Dann submits that the sentencing principle of totality warrants the imposition of fully concurrent sentences of imprisonment or, alternatively, only modest cumulation on the two charges. Ms Warren, on behalf of the prosecution, submits that a wholly concurrent sentence would fail to reflect the criminality of your conduct in discharging the firearm which recklessly placed not one, but two police officers at risk as to their safety. Appropriately however, Ms Warren accepts that significant concurrency is warranted to reflect the fact this outcome was occasioned by a single act in the discharge of the firearm.
75I agree with the prosecution submission that the risk posed to the safety of the separate victims should be reflected in a degree of cumulation between the two charges, more particularly given the legislative presumption created by s 16(3E) of the Sentencing Act 1991. However, in my view it is appropriate that the cumulation be moderated to ensure you are not doubly punished for the one act, and to ensure that the totality of your sentence fairly reflects the overall criminality of your conduct.
76Neither party was aware of any comparable cases that may shed light on current sentencing practices for offences contrary to s 31C of the Crimes Act 1958. This offence only came into operation on 13 March 2019. However, the prosecution did refer me to earlier decisions involving reckless conduct offences where the accused had discharged a firearm at police officers. One of those cases is the Court of Appeal decision in Phillips & Liszczak v The Queen.[31] In that case, the co-accused were charged with reckless conduct endangering serious injury, recklessly causing injury and other offences arising from an incident where they fired a gun, at close range, at a police vehicle being driven by police. The applicable maximum penalty for the each offence was 5 years’ imprisonment. Following a plea, the offenders were sentenced to four years’ imprisonment on both the charge of recklessly causing injury and the charge of reckless conduct endangering serious injury. Two years of the sentence imposed on the latter charge was ordered to be served cumulatively on the charge of recklessly causing injury.
[31]Phillips & Liszczak v The Queen [2017] VSCA 313
77In that case, the Court of Appeal noted that the two discrete offences arose from the one act of firing the shotgun but determined that the overlap between the two offences was recognised by the significant concurrency on each charge. The measure of cumulation was found to be appropriate having regard to the different elements of the separate offences relating to separate victims. An appeal on the grounds that the sentence imposed was manifestly excessive - being a sentence equivalent to 80% of the maximum penalty – was dismissed. In contrast to your position however, the accused in that case had extensive criminal histories and the offending occurred following their recent release from prison. On the other hand, both were sentenced following pleas of guilty and to offences carrying a lower maximum penalty than here.
78In the case of DPP v Le[32], the accused was sentenced for fourteen charges of conduct endangering life having fired two shots at the front door and another three shots at the window of a house. Police officers were behind both the front door and window. However, in this case, it could not be established the accused knew, before he fired the shots, that the people were police officers. The applicable maximum penalty was 10 years, and the accused was sentenced to three years’ imprisonment on each charge of conduct endangering life. This case clearly differs from yours and is of little guidance.
[32]DPP v Le [2019] VSCA 219
79In the event, I do not consider the cases to which I was referred to be particularly instructive beyond recognising the inherent seriousness of offences involving the discharge of a firearm reckless as to the safety of police, and the need for the sentence imposed to deter others from such serious offending.
80Finally, Mr Dann submitted that the twelve days you spent in hospital under police guard should be treated as ‘custody’ for the purposes of pre-sentence detention pursuant to s 18 of the Sentencing Act 1991. Section 18 provides that any period during which an offender is held in custody ‘in relation to proceedings for the offence’ must be reckoned as a period of imprisonment already served, unless otherwise ordered. I accept that you were not free to leave hospital and would have been arrested had you attempted to do so at any time. However, the declaration available under s 18 of the Sentencing Act 1991 expressly refers to being held in custody in relation to “proceedings for the offence”. That expression is not defined in the Sentencing Act 1991, but I note that a “criminal proceeding” commences under the Criminal Procedure Act 2009 with the filing or signing of a charge sheet.[33]
[33]See section 5 of the Criminal Procedure Act 2009
81In your case, it was not until you were discharged from hospital on 24 September 2019 that you were arrested and charged. Mr Dann referred to the cases of Noori[34] and Singh[35] as instances where presentence detention was reckoned under s 18 for periods, following arrest but prior to interview and charge, where offenders were detained. These cases differ from yours in that you were not arrested until after you were discharged. Whilst I consider the position advanced by Mr Dann is arguable, I am not persuaded the legislative scheme of presentence detention is available in the circumstances of your hospitalisation to permit a formal declaration of those 12 days as presentence detention to be reckoned as served under s 18 of the Sentencing Act 1991.
[34]DPP v Noori [2019] VSC 172
[35]DPP v Singh [2021] VSC 182
82Nonetheless, the law recognises that periods in other forms of custodial or restrictive settings, such as immigration detention or time in a rehabilitation facility,[36] may be taken into account in a broad sense in mitigation of sentence. In R v Renzella, the Court of Appeal held that s 18 of the Sentencing Act 1991 is not an exhaustive statement of the extent to which pre-sentence detention may be taken into account, and that “[p]resentence detention to which s 18 does not apply is to be taken into account in the exercise of the court’s discretion” as a matter of justice.[37] Here, whilst in hospital under police guard, you were no longer at liberty whilst receiving treatment for your gunshot wounds. In a practical sense, you were in the custody of the police. As a matter of justice, and in the exercise of my sentencing discretion, I have taken these twelve days into account by expressly deducting that period from your head sentence of imprisonment.
[36]See, for instance, Akoka v The Queen [2017] VSCA 214
[37]R v Renzella [1997] 2 VR 88, at 98
Sentence
83Taking into account each of the matters to which I have referred, including the maximum penalty for each offence, I sentence you as follows.
Indictment No K12499808.2A
84On charge 1 – discharging a firearm reckless as to the safety of a police officer, namely A/Sgt Stacey, you are convicted and sentenced to five years and six months’ imprisonment. This is the base sentence.
85On charge 2 – discharging a firearm reckless as to the safety of a police officer, namely SC Gee, you are convicted and sentenced to five years and six months’ imprisonment.
86I am conscious that these two offences arise from the same act, and that care must be taken to ensure you are not doubly punished. However, for the reasons given, I consider it appropriate that there be some cumulation of the sentence imposed on charge 2 to reflect that your conduct was reckless as to the safety of two separate victims. Accordingly, I order that 11 months and 18 days of the sentence imposed on charge 2 be served cumulatively upon the sentence imposed on charge 1. In calculating this period of cumulation, I have expressly taken into account the 12 days spent by you in hospital under police guard.
Indictment No K12499808.2B
87On charge 1 – possession of a general category handgun without a licence, you are convicted and sentenced to 12 months’ imprisonment.
88On charge 2 – handling stolen goods, being the Smith & Wesson handgun, you are convicted and sentenced to 3 years’ imprisonment.
89It is appropriate there be some cumulation of these sentences in order to reflect the separate criminality of being a person in possession of the operational and loaded .38 calibre handgun, without a licence, and retaining this firearm knowing or believing it to be stolen whilst out in the community. I also accept there is some overlap in these offences.
90I order that 2 months of the sentence imposed on charge 1 on this indictment and 10 months of the sentence imposed on charge 2 of this indictment be served cumulatively upon one another and upon the sentences imposed on charge 1 and the 11 months and 18 days cumulation ordered on charge 2 of the trial indictment.
91On summary charge 11 - failure to store cartridge ammunition contrary to s 121(1A) of the Firearms Act 1996, you are convicted and sentenced to 3 months’ imprisonment, to be served concurrently with other sentences imposed this day.
92This gives a total effective sentence of 7 years, five months and 18 days’ imprisonment. I fix a period of 5 years before you are eligible for parole.
93Pursuant to s 18 of the Sentencing Act 1991, I direct that 982 days of pre-sentence detention be reckoned as served.
94Pursuant to s 6AAA of the Sentencing Act 1991, I am required to indicate the sentence I would have imposed had you not pleaded guilty in respect of charges 1 and 2 on the plea indictment. There is an obvious artificiality in doing so. As best I can, I indicate that had you not pleaded guilty to those offences, the sentence I would otherwise have imposed would have been 7 years, 10 months’ imprisonment with a non-parole period of five years, 3 months.
95Finally, I make the forfeiture and disposal orders sought by the prosecution, noting they are not opposed.
0
12
0